Brightstone Criminal | The Right to Silence

If you are a suspect for a criminal offence or are being investigated for a crime by attending to the police station or even immediate after the arrest, the Police may want to ask you questions.

You have a right to silence – this means that you do not have to answer Police questions, you do not have to make a statement and you do not have to do an interview – unless you choose to.

What is the “Right to Silence”?

Police may want to question you to find out what happened, confirm whether you were involved or find out who else was involved. They may want to show you evidence, like images of the offence, or CCTV footage, to confirm the identity of the offenders. This is part of their job and they have a right to ask those questions, but you do not have to answer them, or give information, unless you want to. It is always your choice.

Any comments that you make, or actions that you do (including identifying yourself or others on CCTV) can be used against you or others in court.

What sorts of questions may Police want to ask me?

It is always difficult to take over a case from another agent because you have to start reviewing the case from scratch, identifying any mistakes on the way and also strategising on how to fix the issue such that it would not raise further complications for inconsistency.

As we were reviewing the application, we found multiple issues with the application:

No supporting evidence was uploaded except for marriage certificate, identity documents, previous divorce document, police checks and their daughter’s birth certificate;
No sponsorship application was lodged;
The Sponsor’s name was filled in incorrectly; and
The client was not properly advised of their eligibility for a ‘double grant’ if they had delayed the application by 2-3 months.

When handling these cases we have to be quick to race against the clock (because these issues can only be fixed before a decision is reached by the Department) whilst also being meticulous in our work.

It was obvious that the application was lacking because it did not have any supporting evidence to support the 4 aspects of a genuine and continuing relationship:

Financial Aspect;
Social Aspect;
Nature of Household;
Nature of Commitment .

We assisted the client in gathering more supporting evidence by brainstorming with them different ideas and guiding them on how they can present those aspects clearly to the Department. As a last measure, we also drafted a legal submission which collated all evidence together, backed up by case law interpretation and an explanation on how they meet specific legal criteria as required for the grant of the partner visa.

Once we submitted all this extra information which filled in all the gaps of the application, the Department immediately granted the partner visa to the client within 2 business days. The Department made no further requests for any documents.

It is clear that the previous agent’s attempt to simply ask the Department to expedite the grant was not successful because the application was incomplete. The processing time of the application can be greatly shortened if you present a clear, convincing and complete application to the Department.

Identification – what if Police are just asking me to give my name and address?

The request for your identification should be treated a little bit differently to other sorts of Police questions. It is generally one of the only exceptions to the Right to Silence.

In many situations, Police do have a power to demand identification – this means your name and address. Failing to give those details is an offence.

Other exceptions

If your vehicle is involved in a serious crime, you have a duty to disclose to Police the details of the driver and any passengers at the time of the offence.

If I chose to answer questions about a crime, what will the Police do with that information?

If you are charged, the Police can use the things you say as evidence in later court proceedings. This may include court proceedings against you, or proceedings against other people. Information will also be used for ongoing Police investigations.

Should I do an interview or not?

You should always get legal advice before you decide whether to answer Police questions or do an interview.

Sometimes it is in your interests to do an interview, and your lawyer may advise you to do one – but they need to appoint an experienced criminal lawyer and allow him/her fully to assess the situation first. Sometimes doing an interview will directly lead to you being charged and make it very difficult for you to defend a charge later on in court. It is certainly possible to make your situation worse in a legal sense by doing interviews.

For this reason, you should always talk to an experienced criminal defense lawyer and get advice before doing an interview. If you can’t get in touch with a lawyer, and the Police want to interview you, you should remain silent until you have had a chance to get legal advice. You should tell the Police that you do not wish to be interviewed until you have spoken to a lawyer.

Does it make any difference whether Police question me on the street or in a formal interview?

As a general rule, anything you say to a Police Officer can be recorded in a statement by that Officer and may be used against you later in court.

What if I am a witness to a crime, do I have to answer questions or give Police information?

Generally, no, you do not have to. There is no legal obligation to report crime or provide information to the Police, unless it is in relation to a very serious offence. In relation to very serious offences, you can be prosecuted for Concealing if you do not assist Police with investigations.If you do report a crime to the Police, or provide a statement as a witness, you need to be aware that this means you can be asked to give evidence in court against the offender, you can be subpoenaed (or legally required) to attend, and arrested if you fail to do so.

What if I was present when a crime occurred, and the Police want to question me? How do I know if I am a suspect, what do I do?

This is tricky. If you were present while a crime was committed by people you were with, even if you were not actively involved, you will likely be a suspect. You should take this situation seriously and assume that you are being investigated. That means staying silent until you have received legal advice.